THE OTHER CRISIS WITH THE SUPREME COURT: ITS RADICAL, POLITICAL RULINGS
The other crisis with the Supreme Court is the political nature of the rulings of the six radical, right-wing justices who upend precedents, the rule of law, and democratic norms to achieve what certainly appear to be predetermined outcomes. Twice before in U.S. history the Supreme Court has attempted to grab reactionary dictatorial power. Ultimately, the voters will decide if this is the course they want America to pursue.
(Note: If you find my posts too much to read on occasion, please just read the bolded portions. They present the key points I’m making.)
The other crisis with the Supreme Court, in addition to the financial and conflict of interest scandals of individual justices, is the political nature of the rulings of the six radical, right-wing justices. (See this previous post for an overview of the ethical scandals of the Supreme Court justices and some possible fixes.) They have upended well-established legal precedents, long-standing procedural practices, and vital democratic norms. They have created a crisis by aligning themselves with the reactionary, white, evangelical Christian, nationalist, right-wing of the Republican Party. By taking on cases designed to provide a venue for achieving their political and ideological goals, and by making rulings consistent with these goals rather than with the rule of law, they are grabbing dictatorial power and attempting to govern the country from the Court. [1]
Recent Supreme Court rulings threaten generations of progress toward real democracy and the achievement of the principles set forth by our founding fathers and documents. The six right-wing justices are not constitutional originalists or textualists, or conservatives; they are radical reactionaries undermining the Constitution and democracy with almost every ruling. (See this previous post for an explanation of why radical and reactionary are the appropriate descriptors for these six justices.)
Twice before in the 233-year history of the Supreme Court similar crises have occurred. In both cases, as today, the thrust was reactionary – an attempt to return America to a past idealized by a subset of the population.
The first crisis was in the 1850s when the Court, dominated by slaveholders, tried to entrench white supremacy and slavery in America. The key event was the Dredd Scott decision, which ruled that a person of African descent was not a citizen, could not sue in federal court, and basically could never achieve freedom. The decision is widely viewed as a significant contributing factor to the occurrence of the Civil War.
The second crisis was in the 1930s when the Court, in the face of the Great Depression, tried to block President Roosevelt’s efforts to restructure the economy with a more level playing field through workers’ rights and protections, as well as a commitment to economic justice and equal opportunity. The Court’s rulings protected the wealth and privilege of the economic elites and barred any government establishment of a right to human dignity or equality for others.
From an issue-based perspective, the current court has ignored long-standing precedents in ending abortion rights, dramatically expanding gun rights, and limiting the executive branch’s power to promulgate regulations, including to address the climate crisis. From a process perspective, the Court has expanded its power and upended established procedures through the frequent use of emergency orders and what’s referred to as the “shadow docket.” With these orders, the Court can step into cases in lower courts and make rulings without allowing trials, briefings, oral arguments, or friend-of-the-court filings. It typically issues these rulings with no explanation and almost always presents victories to politically favored litigants or causes. These shadow docket rulings have been used aggressively and have been a significant contributor to the achievement of the political goals of the six right-wing justices.
The overarching result is that nothing can be viewed as settled law and that the rule of law has been replaced by the rule of the white, evangelical Christian, nationalist, reactionary ideology of the six right-wing justices. The presence of these six justices on the Court is the result of a decades-long effort, spearheaded by the Federalist Society, by right-wing Republicans and their billionaire backers. The current revelations of financial and other connections between the six justices and right-wing billionaires and Republicans are just the tip of the iceberg of concerted efforts to have right-wing interests favored by the Court.
The crisis of the Supreme Court’s political decision-making is likely to be evident in a number of major cases in the 2023 term. The court recently agreed to hear a case that could gut the government’s ability to regulate business. In this case, the Court will reconsider the 1984 Chevron v. Natural Resources Defense Council decision, which affirmed that judges should defer to executive branch agencies’ reasonable interpretation of a law if the wording of the law is unclear or unspecific. The six right-wing justices seem likely to reject this precedent, which would allow judges to second guess regulations according to their own interpretations of laws. [2]
The Court will also consider and rule on a case based on the independent legislature theory, which asserts that only state legislatures (and not state or federal courts) may regulate, supervise, and ultimately decide elections. This would apply to federal elections for president and Congress, not just state office elections. It would, at least in theory, allow a state legislature to decide the outcome of an election regardless of the will of the voters. In particular, it would allow a state legislature to send a different set of electors to the Electoral College in a presidential election than those chosen by voters.
In 2023, the Court will also take up a case that would allow it to end affirmative action in college admissions and another one that would allow it to dramatically cut back the few remaining voter protections of the Voting Rights Act. Also of note, a group of landlords is preparing to ask the Court to overturn rent control in New York City, a change in law supported by Crow Holdings. This case would again put Justice Thomas and his relationship with Harlan Crow in the spotlight. If the case does come before the Court, it will be interesting to see if Thomas recuses himself. He hasn’t in similar situations in the past.
In conclusion, the politicization of the Supreme Court and the alignment of a six-justice majority with the radical, reactionary, white, evangelical Christian, right-wing of the Republican Party have not only undermined the Court’s legitimacy, but also the rule of law, a foundational principle of American democracy and exceptionalism. Numerous other institutions and processes of democracy are being undermined as well.
Ultimately, the voters will determine the future of the Court. They can vote to protect their rights and lives from the Court’s radical, reactionary rulings by shifting power in Congress and the White House away from the Republican Party. This would allow legislative and appointment powers, over time, to repair the Court and the damage that’s been done.
[1] Epps, G., 10/30/22, “The Court’s third great crisis,” Washington Monthly (https://washingtonmonthly.com/2022/10/30/the-courts-third-great-crisis/)
[2] Cox Richardson, H., 5/1/23, “Letters from an American blog,” (https://heathercoxrichardson.substack.com/p/may-1-2023)